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It looks like Tom DeLay is trying to make the prosecutor who is spearheading his case explain his actions. Previously reported here was a discussion regarding three grand juries investigating DeLay, with one no billing. DeLay's attorney, Dick DeGuerin filed a Motion to Dismiss the indictment (see post here) and prosecutorial misconduct appears to be a claim. Now the defense is proceeding full speed ahead to prove this claim. According to the Houston Chronicle here, they have subpoenaed documents and other materials of the prosecutor.

The question now becomes how the prosecutor will handle this attack. Will the prosecutor recuse himself as there are ethical issues involved when a lawyer becomes a witness in a case they are handling? Irrespective of this ethical rule, is there a conflict because the prosecutor is now having to defend his actions? On the other side, if defendants can remove prosecutors merely by filing prosecutorial misconduct actions against them, the defense could be placed in the position of removing prosecutors they do no want on the case.

Defendants routinely file prosecutorial misconduct motions and few are successful. It is often difficult to prove that the prosecutor acted vindictively with respect to this particular indictment. There is also the problem of grand jury secrecy and whether a court will allow defense counsel the right to break that secrecy in order to secure evidence to support its motion. If the defense is successful in breaking that secrecy or in obtaining the information it desires from the prosecutors, it may be a different story. Stay tuned.